CLA1501
Online Class: Chapters 1
Presented by Prof C Stoop
The South African Legal System
A study of how
law interacts with
society and how
law has an
influence on
human behaviour
and interaction.
The history of South African law:
Historical Influence
Description
Roman Law
The foundation of South African law, derived from the legal system of ancient Rome,
emphasising codified principles and legal scholarship.
Roman-Dutch Law
A combination of Roman law and Dutch customary laws was brought to South Africa
by Dutch settlers. The works of Roman-Dutch jurists, statutes of Holland and
collections of old Dutch opinions + court decisions form part of present-day SA law.
English Law
Introduced during British colonial rule (19th–20th centuries). Influenced procedural,
constitutional, and commercial law in South Africa.
Authoritative vs Persuasive legal sources:
Authoritative Sources
Persuasive Sources
Definition
Sources of law that courts must follow.
Sources that courts may consider but are not
bound to follow.
Binding Effect
Legally binding on courts within the jurisdiction.
Not binding but can influence legal reasoning.
Examples
Legislation, the Constitution, court judgments
from higher courts, and customary law.
Foreign law, legal textbooks, law journal articles,
and lower court decisions.
Hierarchy
Higher in the legal system and take precedence
over other sources.
Lower in authority and only used for guidance.
Usage in Courts
Applied directly in legal decisions as the primary
legal basis.
Used to support arguments or provide additional
perspectives.
Jurisdictions
Comes from within the same legal system.
Can come from other countries or legal scholars.
Sources of South African Law:
Source of Law
Description
Legislation
Laws passed by Parliament, including acts and statutes. It is a primary source of law in South Africa.
The Constitution
The highest law of the country, that sets out the rights and duties of citizens and the powers of government.
It is the supreme legal authority.
Customary Law
Law that originates from the customs and traditions of South African communities, recognised by the
Constitution,
Judgments of the Courts
Judicial decisions made by the courts, which interpret and apply the law. These decisions are binding on lower
courts and influence future cases.
Old Authorities
Legal texts and writings from earlier legal scholars and jurists, especially from Roman-Dutch law, that continue
to influence South African law.
Foreign Law
The laws of other countries that may be considered or adopted by South African courts, especially when
there is no local precedent or law on the issue.
Textbooks and Law Journals
Academic writings, scholarly articles, and law textbooks that provide insights, interpretations, and critiques of
the law. These are persuasive but not binding.
Courts in South Africa
The Constitutional
Court: The apex court
of SA – none of its
decisions can be
changed by any other
court. Seated in
Johannesburg.
The Supreme Court
of Appeal: The High
Court and its various
divisions can appeal
to this court. Seated
in Bloemfontein.
The High Court: There
is only ONE High
Court in SA, with
several DIVISIONS and
LOCAL DIVISIONS (See
page 8 of Textbook).
Southern African
courts:
1. Supreme Court and
High Court of
Zimbabwe (Seated in
Harare).
2. Supreme Court and
High Court of Namibia
(Seated in Windhoek).
Specialised courts in SA
Labour Courts and Labour Appeal Court
= Same status as High Court. Labour disputes
between employer and employee…
Land Claims Court
= Same status as High Court. Land reform disputes.
Main office is in Randburg.
Competition Appeal Court
Special division of the High Court to consider appeals
or reviews of decisions made by the Competition
Tribunal.
Electoral Court
To adjudicate electoral disputes or complaints about
infringement of the Electoral Code of Conduct.
Magistrates’ Court
To be found in most towns in the RSA. Very limited
jurisdiction.
Small Claims Court
Resolve minor civil claims. More affordable. No juristic
persons may institute a claim. Jurisdiction to hear any
civil matter to the amount of R20 000.
Doctrine stare decisis
Student-Friendly
Definition:
The doctrine of stare
decisis means that
courts must follow
previous legal
decisions (precedents)
made by higher courts
in similar cases. This
ensures consistency
and fairness in the
legal system.
Example:
If the Supreme Court
of South Africa
decides that a new
type of contract is
legally valid, all lower
courts must follow
that decision in future
cases involving similar
contracts. This helps
make sure that the law
is applied the same
way for everyone.
Ratio decidendi vs Obiter dictum
Typical aspects of a judgment
 The name of a case contains very important information:
National Sorghum Breweries Ltd v Corpcapital Bank Ltd 2006 (6) SA 208 (SCA)
The applicant, claimant or appellant is National Sorghum Breweries Ltd.
The letter “v” stands for versus which means “against”.
The defendant or respondent is Corpcapital Bank Ltd.
The numbers 2006 (6) mean that the case is reported in the sixth volume of the 2006 law reports.
“SA” means the case is reported in the South African Law Reports.
“208” refers to the page number on which the case is reported.
“(SCA)” means that the case was heard in the Supreme Court of Appeal.
• In a commercial law context, the concept of Ubuntu plays a role in
promoting fairness, cooperation, and ethical business practices.
Ubuntu, an African philosophy emphasising human dignity,
community, and interconnectedness, influences legal principles,
particularly in South Africa and other jurisdictions that recognise
social justice in commerce.
• An example: The case of Everfresh Market Virginia (Pty) Ltd v
Shoprite Checkers (Pty) Ltd (2012) (1) SA 256 (CC) at [71]. The
Constitutional Court suggested that Ubuntu could be used to
promote good faith in contractual negotiations.
• THUS:
Ubuntu in commercial law fosters a balance between legal certainty
and fairness, ensuring that commerce operates with ethical
responsibility and a sense of humanity. While not a rigid legal rule, it
serves as a moral compass for interpreting laws and contracts in a way
that promotes justice and social harmony.
Mentimeter –
Educational
Activity
Scan the QR code below or go to: menti.com and enter the code: 4260 3825
Link: https://www.menti.com/al6awu3qzwss